Conservative federal appeals court shifts left

Recent opinions reveal a possible liberal leaning

November 19, 2011|By Tricia Bishop, The Baltimore Sun

The federal appellate court that covers Maryland has for years been considered one of the more right-leaning in the nation, finding that women can be banned from a military institute, that the FDA can't regulate tobacco and that confessions count even when suspects haven't been read their rights, among other conservative opinions.

But the 4th Circuit U.S. Court of Appeals now appears to have taken a left turn.

Last week, the court sided with a criminal suspect over police for the fourth time since March on a Fourth Amendment case claiming that improper searches violated the defendant's rights.

In September, the court threw out constitutional challenges to President Barack Obama's health care overhaul efforts, finding that a penalty for not having health insurance amounts to a tax that can't be challenged until it's paid — and that part of the law doesn't take effect for years.

And in July, the court ruled in a case over the separation of church and state that only generic, "nonsectarian" prayers are appropriate for government meetings.

The decisions are the first evidence of an altered philosophy within the 4th Circuit, which oversees federal appeals cases from Maryland, Virginia, West Virginia and the Carolinas, legal analysts said. The shift follows a half-dozen appointments by Obama to a bench that previously had a Republican majority.

"There's been a marked change," said Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank in Washington. "Historically, this has been one of the most, if not the most, conservative circuits. Now it's almost one of the most liberal."

When Obama took office, the 4th Circuit, based in Richmond, Va., had 11 sitting judges — six Republican appointees and five Democratic picks — and four vacancies.

The spots were left open because the Democratic-controlled U.S. Senate of 2007 and 2008 refused to approve President George W. Bush's 4th Circuit appointments, including Rod J. Rosenstein, who had been named Maryland's U.S. attorney a few years earlier based on a Bush recommendation.

The inaction on judicial nominations paved the way for Obama to make an impact with his choices, which have focused on diversifying federal courts based on race, gender and sexual orientation. Since he took office, two more vacancies opened on the 4th Circuit, allowing him to nominate six people in total. Five have been approved: a woman, two black men, a Latino, and a white man.

That makes the split on the court nine Democratic appointments to five Republican. Another Obama pick, Stephanie Thacker, was nominated this year and is awaiting confirmation by the Senate.

The new makeup could have an effect on national policy, given the kinds of cases handled by this court, legal analysts said.

"It is among the most important federal appeals courts," said Kenneth A. Klukowski, a constitutional lawyer on the faculty of Virginia's Liberty University. It covers "an area of the country which has some especially important business and economic interests. It's also the circuit that covers the Pentagon, the CIA, the NSA and a lot of our national security installations."

Last week, in a 2-1 decision, the judges found that police officers from Seat Pleasant in Prince George's County overstepped their bounds when they used Obie Lee Powell's prior criminal history, which included armed robbery charges, as justification to search him after a traffic stop. Powell was convicted of crack cocaine possession in 2008, based on evidence discovered during the illegal pat-down, and sentenced to 63 months in federal prison.

His federal public defender, Daniel W. Stiller, called the appeals court decision a victory for constitutional rights.

"With changing faces on the court, there seems to be … an increasing sensitivity to law enforcement overreach, as well as citizen rights," Stiller said.

The Powell case was the fourth this year to raise concerns "about the inclination of the government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity," judges said in the majority opinion, written by a Republican appointee.

In March, the 4th Circuit also overturned a North Carolina cocaine conviction after finding that the defendant's odd movements inside a car didn't warrant his detention. In August, they upheld a Maryland federal court's ruling that a state police drug search was illegal, and they reversed a separate ruling from a Virginia federal court allowing evidence from a pat-down done without the suspect's consent.

Matthew G. Kaiser, a federal criminal defense attorney in Washington who blogs about decisions from the various appeals courts, said the 4th Circuit rulings reveal a court that's now more "hospitable" to arguments from criminal defendants.